On July 29, 2024, a new Executive Office of Immigration Review (EOIR) Final Rule, Efficient Case and Docket Management in Immigration Proceedings, went into effect. The rule codifies the authority of immigration judges (IJ) and the Board of Immigration Appeals (BIA) to administratively close and terminate removal proceedings. The new rule can be found in its entirety in the Federal Register available online at https://www.govinfo.gov/content/pkg/FR-2024-05-29/pdf/2024-11121.pdf. The rule includes three major changes: (1) Immigration Judges’ Authority to Administratively Close Proceedings; (2)the authority for an Immigration Judge to terminate proceedings in their discretion and sets forth the factors that should be considered in those circumstances; (3) Rules for Retroactive Application of Law for Post Conviction Relief; (4) The Rule Restores Important Procedural Safeguards That the Trump Rule Had Eliminated; (5) The Rule Gives the BIA Expanded Authority to Grant Voluntary Departure Rather than Remand; and (6) Changes some language to be more appropriate. 1. Immigration Judges’ Authority to Administratively Close Proceedings The Final Rule codifies IJs’ and the BIA’s administrative closure authority and provides a list of factors for deciding whether to administratively close a case or recalendar a previously administratively closed case. 8 CFR §§ 1003.18(c); 1003.1(l). The rule generally mandates administrative closure if based on a joint motion or a motion led by one party where the other party “has affirmatively indicated its non-opposition.” 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). In all other situations, the IJs and the BIA may grant administrative closure orrecalendar a case if they deem it warranted, even if a party opposes. However, IJs and the BIA must consider the “totality of the circumstances” including the following non-exclusive factor (A) The reason administrative closure is sought;(B) The basis for any opposition to administrative closure;(C) Any requirement that a case be administratively closed in order for a petition,application, or other action to be led with, or granted by, DHS;(D) The likelihood the noncitizen will succeed on any petition, application, or otheraction that the noncitizen is pursuing, or that the noncitizen states in writing or onthe record at a hearing that they plan to pursue, outside of proceedings before;(E) The anticipated duration of the administrative closure;(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;(G) The ultimate anticipated outcome of the case pending before; and(H) The ICE detention status of the noncitizen.” Codified at 8 CFR §§ 1003.18(c)(3)(i); 1003.1(l)(3)(i). The regulation also species that a noncitizen does not need to have an action pending outside of EOIR proceedings to present an appropriate case for administrative closure. 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). The Final Rule is nearly identical to identical to the proposed rule, with the addition of the noncitizen’sICE detention status as an administrative closure factor. Many of the factors listed in the rule are similar to those previously outlined in leading BIA administrative closure cases, see Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), but motions for administrative closure filed now should be sure to cite to the new regulation. The Board’s holding in Matter of W–Y–U– that ‘‘the primary consideration . . . in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits,’’ id., is inconsistent with the unweighted, ‘‘totality-of-the-circumstances’’ standard implemented by this rule, Matter of W–Y–U–, 27 I&N Dec. 17, is superseded.”). See 89 Fed. Reg. at 46753. 2. Codifying Immigration Judges’ Authority to Terminate Proceedings in Their Discretion 8 CFR § 1239.2(b) ORDERING TERMINATION OR DISMISSAL (b) Ordering termination or dismissal. After commencement of proceedings, an immigration judge or Board member shall have authority to resolve or dispose of a case through an order of dismissal or an order of termination. An immigration judge or Board member may enter an order of dismissal in cases where DHS moves for dismissal pursuant to paragraph (c) of this section. A motion to dismiss removal proceedings for a reason other than those authorized by paragraph (c) of this section shall be deemed a motion to terminate and adjudicated pursuant to 8 CFR 1003.1(m), pertaining to cases before the Board, or 8 CFR 1003.18(d), pertaining to cases before the immigration court, as applicable. 8 CFR 1003.1(m) TERMINATION Mandatory Termination Under the mandatory termination category, IJs and the BIA are required to terminate proceedings if any of the below circumstances are present: ▹ The removal charge(s) cannot be sustained;▹ Termination is otherwise required by law;▹ Fundamentally fair proceedings are not possible because the noncitizen is mentallyincompetent and adequate safeguards are unavailable;▹ The noncitizen obtained U.S. citizenship after removal proceedings started;▹ The noncitizen has obtained one of the following statuses and would not have beenremovable as charged if they had obtained such status before the initiation ofproceedings: LPR status, refugee status, asylee status, U nonimmigrant status, Tnonimmigrant status, or S nonimmigrant status;▹ The noncitizen meets the regulatory standard for termination after NACARAadjustment, see 8 CFR § 1245.13(l); or▹ The parties led a joint motion to terminate, or “one party led a motion to terminate and the other party affirmatively indicated its non-opposition, unless the [IJ] articulates unusual, clearly identified, and supported reasons for denying the motion.” Codified at 8 CFR §§ 1003.18(d)(1)(i); 1003.1(m)(1)(i). Discretionary termination In removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (m)(1)(ii)(A) through (F) of this section is met. The Board shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate. (A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh). (B) The noncitizen is prima facie eligible for naturalization, relief from removal, or a lawful status; USCIS has jurisdiction to adjudicate the associated petition, application,

An in absentia order is an order that is entered by the Judge in your absence (in absentia). If you are not present in Court the Judge may enter an order against you if she believes that you were given proper notice of the hearing and should have been there. If this happens you can file a motion to reopen the case. Typically such a motion much be filed within 180 days according to the regulations but there is an exception if it was an in absentia order and the reason you were not there was because you did not receive notice of the hearing i.e. no one informed you that you had a hearing that day. If you missed your hearing and you are trying to file a motion to reopen pro se (without a lawyer) then you should read this article about filing a motion to reopen pro se and take a look at the EOIR template MTRO for non-represented respondents. You should also read the blog post, What if I Missed my Hearing and Was Ordered Removed. This article contains the Regulations, Statutes, Court Rules, and Case Law relating to Motions to Reopen In Absentia Orders. REGULATIONS 8 CFR § 1003.23 8 CFR § 1003.23 – Reopening or reconsideration before the immigration court 8 CFR §1003.23(b)(4)(iii) (iii) Order entered in absentia in deportation or exclusion proceedings. (A) An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed: (1) Within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstances); or (2) At any time if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien. STATUTES 8 U.S.C. §1229a(b)(5)(C)(i) In absentia removal order may be rescinded upon a motion to reopen if the noncitizen demonstrates that the failure to appear at the removal hearing was because of “exceptional circumstances.” 8 U.S.C. §1229a(b)(5)(C)(i). That term refers to circumstances beyond the noncitizen’s control, such as “serious illness or death” of the noncitizen’s spouse, child, or parent, but does not include “less compelling circumstances.” 8 U.S.C. §1229a(e)(1). The panel explained that, in making the exceptional circumstances determination, the IJ and BIA must look to the totality of the circumstances and must consider certain relevant factors. INA §240(e)(1) INA §240(e)(1) Exceptional Circumstances beyond the alien’s control INA §240(b)(5)(C)(ii) INA §240(b)(5)(C)(ii) Lack of Notice EOIR Practice Manual https://www.justice.gov/eoir/reference-materials/ic/chapter-5/9 (a) In General — A motion to reopen requesting that an in absentia order be rescinded asks the immigration judge to consider the reasons why the respondent did not appear at the respondent’s scheduled hearing.  See Chapter 4.17 (In Absentia Hearing). … **(1) Content — A motion to reopen to rescind an in absentia order must demonstrate that: the failure to appear was because of exceptional circumstances; the failure to appear was because the respondent did not receive proper notice; or the failure to appear was because the respondent was in federal or state custody and the failure to appear was through no fault of the respondent. INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).  The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the respondent (such as battery or extreme cruelty to the respondent or any child or parent of the respondent, serious illness of the respondent or serious illness or death of the spouse, child, or parent of the respondent, but not including less compelling circumstances).  INA § 240(e)(1). **(2) Time limits — (A) Within 180 days — If the motion to reopen to rescind an in absentia order is based on an allegation that the failure to appear was because of exceptional circumstances, the motion must be filed within 180 days after the in absentia order.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (B) At any time — If the motion to reopen to rescind an in absentia order is based on an allegation that the respondent did not receive proper notice of the hearing, or that the respondent was in federal or state custody and the failure to appear was through no fault of the respondent, the motion may be filed at any time.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (C) Responses — Responses to motions to reopen to rescind in absentia orders are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge. **(3) Number limits — The respondent is permitted to file only one motion to reopen to rescind an in absentia order.  8 C.F.R. § 1003.23(b)(4)(ii). **(4) Automatic stay — The removal of the respondent is automatically stayed pending disposition by the immigration judge of the motion to reopen to rescind an in absentia order in removal proceedings.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii) BIA CASE LAW Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988) Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: CIRCUIT COURT CASE LAW MONTEJO-GONZALEZ V. GARLAND, No. 21-304 (9th Cir. 2024) A mother and her two minor children, who entered the United States seeking asylum, were scheduled for an initial hearing before an immigration judge (IJ) in Seattle, Washington. On their way to the hearing, they encountered two major car accidents, causing them to be two hours late. Upon arrival, they attempted to have their case heard but were unsuccessful. The IJ ordered them removed in absentia. They promptly moved to reopen the case, arguing that exceptional circumstances justified their late arrival. The Ninth Circuit reviewed the case. The court held that the IJ and BIA abused

Termination of Proceedings Proceedings may only be terminated when there is a legal basis for doing so. A motion to terminate asks an Immigration Judge to end the proceedings by alleging that the government’s charges are substantively or procedurally defective. The Immigration Judge’s authority to terminate proceedings are limited by regulations 8 CFR § 1003.10(b) and 8 CFR § 1003.1(d)(1)(ii), which give Courts and the BIA the power to take “any action” that is “appropriate and necessary” to dispose of a case. The Board defined the specifics of this in more detail in  in Matter of S-O-G- & F-D-B-. The AG later set the rule that controls now from Matter of S-O-G-. In Matter of S-O-G, the AG held that Immigration Judges, “have no inherent authority to terminate or dismiss removal proceedings” even if a case presents compelling circumstances, restricting Immigration Judge’s discretion to terminate. However, the decision also held that the IJ can terminate proceedings if it is expressly authorized by (1) 8 C.F.R. § 1239.2(f), where a respondent is eligible for naturalization, has a pending naturalization application, and has exceptionally appealing or humanitarian factors in their case, and (2) under 8 C.F.R. § 1239.2(c) where DHS moves to dismiss a notice to appear. This decision, however, does not affect motions to terminate that are grounded in law. An Immigration Judge continues to maintain the authority to terminate for any nondiscretionary basis supported by the BIA or judicial decisions, for example lack of subject matter discretion, improperly served NTA, regulatory violations, or res judicata. Termination is like dismissal in that is completely ends the removal proceedings. Any applications before the Court are no longer pending and nothing further must be done to pursue another immigration benefit through other means. Termination can be with or without prejudice. If with prejudice then the respondent cannot be put into removal proceedings again for the same reasons in that first Notice to Appear.